Perresia Resources (M) Sdn Bhd v Perspektif Masa Sdn Bhd (BL-22NCvC-21-06/2023)

Parties then entered into two (2) Sale and Purchase Agreement, both dated 22.2.2011 (“SPA”) with the purchase price of RM,1060,200.00 and RM 1,056,700.00 respectively (“Properties”). Plaintiff claims that the purchase price were paid by 3rd party consideration, which was the debt owed by the Defendant to one Juruukur Bahan FPPS Sdn. Bhd. (“FPS”) to which a Deed of Settlement dated 29.8.2013 was entered between FPS and the Defendant (“Deed”).

The Defendant ought to have delivered the vacant possession of the properties on or by 21.2.2014 which is within 36 months from the date of the SPA as stated in Clause 25(1) of the SPA. However, the Defendant only issued and/or delivered the vacant possession of the properties on 21.2.2023 i.e. 14 days after issuance of Notice of Delivery of Vacant Possession. Plaintiff then filed this suit claiming liquidated ascertained damages against the Defendant pertaining to the late delivery of the said properties.

The Defendant’s version is: i. The Defendant is a developer of a plot of land (“Land”). By way of Letter of Appointment dated 7.4.2010, the Defendant appointed FPS as the Quantity Surveyor for the said project; 3 ii. FPS and the Defendant agreed to settle part of the remaining professional consultant fees owing to FPS for the project by way of contra properties. FPS agreed to accept 2 condominium units and 1 apartment unit known as D’ Rapport Condominium Unit E-21-02 and Unit E-22-02 (“condominium units”) and Palm Garden Apartment A-8-13A worth a total sum of RM 2,182,000.00 as full and final settlement sum of the services rendered by FPS. iii. By way of a letter from FPS to the Defendant dated 11.11.2010 and a letter from the Defendant to FPS dated 10.5.2013, FPS agreed to name the above properties in the name of the Plaintiff as FPS nominee. Plaintiff and the Defendant then entered into 2 SPA for the properties which were dated 22.2.2011. The Defendant and FPS then subsequently entered into a Deed of Settlement dated 29.8.2013 and by way of a Letter of Release dated 17.9.2013, FPS was fully discharged as the Consultant Quantity Surveyors for the project.

The trial took 1 day on 25.11.2024 and the Plaintiff called 2 witnesses and the Defendant called only 1 witness. B. DECISION OF THE COURT [6] Parties have filed Issues to Be Tried and the decision of this court is based on these issues. I. Whether the Plaintiff has locus standi to file the suits? [7] The Plaintiff submits that they have locus standi to file this suit because the SPA was entered between the Plaintiff and the Defendant. The Notice of Delivery of Vacant Possession was issued by the Defendant to the Plaintiff and no one else. At all material times, before the notice of demand being issued by the Plaintiff, there was no evidence whatsoever by the Defendant to suggest that the Plaintiff was not the purchaser of the said properties. By virtue of the said SPA, Plaintiff is the rightful owner of the said 2 properties.

It is not disputed by parties as per paragraph 5 of the Statement of Agreed Facts that Plaintiff was acting as a nominee or agent for FPS in signing the two SPAs. “ 5. By way of a letter from JBFPS to the Defendant dated 11.11.2010 and a letter from the Defendant to JBFPS dated 10.5.2013 (“the Defendant’s letter dated 10.5.2013”), JBFPS agreed to name the above properties in the name of the Plaintiff as JBFPS’s nominee”.

The Defendant’s solicitors brings to Court attention that Plaintiff is bound by paragraph 5 of the Statement of Agreed Facts. Paragraph 5 of the AF amounts to a judicial admission by the Plaintiff under section 58 of the Evidence Act 1950 which states: “Facts admitted need not be proved

No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the court, may in its discretion, require the facts admitted being proved otherwise than by such admissions. This was explained by the Supreme Court in Pembangunan Maha Murni Sdn Bhd v Juruurus Ladang Sdn Bhd [1986] 2 MLJ 30 - Syed Agil Barakbah SCJ: “Now, the general rule is that all facts in issue and relevant facts must be proved by evidence. There are, however, two classes of facts which need not be proved, viz. (a) facts judicially noticed and (b) facts admitted. The exceptions are dealt with by sections 56,57 and 58 of the Evidence Act 1950 under the title “Facts which need not be proved.”. [10] PW2 - Mr Tey Heong Tiong during cross examination confirmed that the Plaintiff was acting as the agent for FPS. This position was also confirmed by letters from FPS to the Defendant dated 11.11.2010 (Bundle A1 page 84) and letter from the Defendant to FPS dated 10.5.2013 (Bundle A1 page 88 - 89) stated that Plaintiff is a nominee of FPS for the condominium units. [11] Therefore, under Section 183 of the Contracts Act 1950, the general rule is, an agent cannot sue or be sued on contracts that he entered into on behalf of the principal “Agent cannot personally enforce, nor be bound by, contracts on behalf of principal. In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principle, nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases:

Where the contract is made by an agent for the sale or purchase for a merchant resident abroad;

Where the agent does not disclose the name of his principal; and

Where the principal, though disclosed, cannot be sued”. Therefore, based on the authority above, this court agreed with the Defendant’s solicitors, that the Plaintiff had no locus standi to sue the Defendant under the two SPAs because Plaintiff merely acting as an agent or nominee for FPS in signing the SPA. II. Whether the Deed excludes the right of FPS and/or the Plaintiff to claim LAD [12] The Plaintiff’s solicitors refer to Clause 5 to 7 of the Deed. “5. PMSB, PASB and JBFPS hereby acknowledges and declares and confirms that their obligations under the terms, conditions, declarations and warranties of the Sale and Purchase Agreements for the Settlement Properties exists remains and continues until all the terms, conditions declarations and warranties have been performed completely and satisfied in accordance with the Sale and Purchase Agreements.

In the event of any inconsistencies between the terms and conditions of this Deed with the Sale and Purchase Agreements, the terms and conditions herein shall prevail.

This Deed sets forth and shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof and shall supersede between the parties hereto with respect to the subject matter hereof and shall supersede all promises, representations, warranties or other statements whether written or oral made by or on behalf of any party to the other of any nature whatsoever or contained in any one party to the other concerning such subject matter.” [13] The Plaintiff’s solicitors submit that based on the Deed, the Defendant shall perform, complete and satisfy all terms, conditions, declarations and warranties of the SPA. The SPA in turns provided that the Defendant shall deliver vacant possession of the properties within 36 months from the SPA dates. There are no other clauses given in the Deed to prevail against the SPA, reading together with Clause 7 of the Deed, the Plaintiff’s solicitor submits that the Deed does not exclude the right of FPS and/or Plaintiff to claim LAD against the Defendant [14] The Defendant now sought to produce a letter dated 10.5.2013 to state that the Plaintiff and/or FPS had agreed to waive rights to claim for LAD. This according to the Plaintiff’s solicitors go against Section 91 of the Evidence Act 1950. The letter dated 10.5.2013, was also never confirmed or agreed by the Plaintiff or FPS. [15] In reply, the Defendant solicitors said the SPAs was signed by the parties on 22.2.2011. Subsequently a Deed of Settlement dated 29.8.2013 was signed between the Defendant and FPS (Bundle A1 page 90 - 95). Mr Foo Chow Luh signed this Deed of Settlement on behalf of FPS. After signing the Deed of Settlement, FPS was fully discharged as the Consultant QS for the project as can be seen in the Letter of Release dated 17.9.2013 issued by FPS signed by Mr Foo to the Defendant (Bundle A1 page 96). Based on this Deed of Settlement, it was recorded that FPS had agreed to accept the properties in lieu of payment in cash for the settlement of the outstanding fees and has selected the following properties totalling RM 2,182,000.00 (1st Schedule of the Deed of Settlement Bundle A1 page 95): i. D’Rapport Unit E-21-02 at a price of RM 939,000.00; ii. D’Rapport Unit E-22-02 at a price of RM 943,000.00; iii. Palm Garden Apartment Unit A-8-13A at a price of RM 300,000.00. [16] The Defendant’s solicitors want the Court look at the recitals of the Deed of Settlement which is found in Bundle A1 page 91. These recitals sets out the background and purposes of the Deed of Settlement. The relevant recitals were: i. Recital D - states that the Defendant has paid FPS RM 25,000.00 in cash as part payment of the debt and the receipt of the said cash by FPS acknowledges the payment leaving a balance of RM 2,182,000.00; ii. Recital E - states that the Defendant has proposed to settle the remaining debt by way of contra and FPS agreed to accept the properties in lieu of payment in cash by way of settlement of the debt; iii. Recital F - states that the Plaintiff’s obligation to pay the remaining debt shall be settled in full by the amount represented by the transfer consideration which was defined as the settlement properties for the sum of RM 2,182,000.00; iv. Recital H - recorder that in anticipation and as full and final settlement of the said agreement, the Plaintiff and the Defendant entered into the SPAs; v. Recital I - states that FPS acknowledges and agrees that the Transfer Consideration shall be taken into account by the Defendant to sett off and contra of the debt. vi. Recital J - states that the parties hereto have agreed to enter into the Deed to govern the manner the contra of the properties exercise as full and final settlement of the Defendant’s debt to FPS. Clause 2 of the Deed of Settlement provides once the set off and contra of the properties have been affected, the Defendant (PMSB) shall be discharged from all action, claim and demand in respect of the outstanding consultancy fee of RM 2,182,000.00. [17] The Deed of Settlement must be read together with the SPA because the very existence of the SPA is from the obligations of parties spelt out in the Deed of Settlement. The intention of the Defendant and FPS in signing the Deed of Settlement was to have the contra of the 2 units condominium as full and final settlement of the consultancy fees of RM 2,182,000.00 owing by the Defendant (Recitals E to J of the Deed of Settlement). The said SPAs is nothing more to materialized the contra of the 2 units condominium to FPS and/ or Plaintiff. The Deed od Settlement conclusively evinced the intention of parties that FPS is only entitled to the settlement of RM 2,182,000.00 and nothing more. Therefore, the Plaintiff’s contention that they are still entitled to the LAD amounting to the total sum of RM 2,287,653.39 for both properties holds no water, this is because the said LAD amount is more that what is owed by the Defendant to FPS and it goes against the intention as to why parties signing the Deed of Settlement in the first place. The main and only reason the 2 properties given to FPS and/or Plaintiffs is to contra the consultancy fees owed by the Defendant to FPS. The Plaintiff and/or FPS have no claim whatsoever in terms of any LAD on the 2 properties since they had mutually and unequivocally settled with the Defendant via the Deed of Settlement. The Defendant cited the Court of Appeal decision in Cosmopolitan Avenue Sdn Bhd v Khong Yao Han & 57 and another appeal [2024] MLJU 2205 para 62 to 65: “Considering the Settlement Agreements, the Plaintiffs has already put the matter of LAD to final rest and conclusion. It would be gravely unjust to allow the Plaintiffs to re-litigate the same. The general rule is that where parties have entered into a settlement agreement, the agreement alone will govern the relationship between the parties and a dispute could not be reopened unless the defendant has taken unfair advantage of the plaintiff (see para [62]); and A settlement Agreement should necessarily prevail even against a social legislation such as the HAD 1966 (see para [63]). III. Whether there was a late delivery and the computation of days and amount [18] The Plaintiff states that there was no dispute between the parties on the fact that there was a late delivery. On the amount, the Defendant further raises that the computation ought to be based on the discounted amount as per the Deed of Settlement; on the other hand, the Plaintiff claims that the amount stipulated in the SPA should prevail. [19] The Defendant in reply to this issue states that whether there was late delivery of vacant possession of the properties i.e. 3287 days i.e. from 21/2/2014 to 21.2.2023 is irrelevant. This is because the purpose of transferring the properties to the Plaintiff is to give effect to the Deed of Settlement between the Defendant and FPS in settling the outstanding fees of RM 2,182,000.00 only. According to DW1 - Lim Song Kang in his examination in chief (Q&A 9), it was the parties understanding that the delivery of the Condominium Units will only be done when the project is completed. For more than 12 years, the Plaintiff or JBFPS had never raised any complaint to the Defendant about any alleged late delivery. Therefore, JBFPS or the Plaintiff is not entitled to claim any other sum from the Defendant. IV. Whether the Plaintiff is entitled to claim LAD against the Defendant? [20] Both SPA provides similar terms on the issue of vacant possession i.e. Clause 25(1) and 27(1). There is delay in handing over the vacant possession of both properties but the Defendant states that if there is any LAD claim that accrues (which the Defendant denied) the Plaintiff’s calculation of the LAD sum of RM 1,45,716.72 for Unit E-22-02 and the LAD sum of RM 1,141,936.67 for Unit E-21-02 is wrong and baseless. On 7.2.2023, the Defendant issued the Notices of Delivery of Vacant Possession of both condominium units to the Plaintiffs as the nominee of FPS (Bundle A1 page 113 - 114). In both suits (Suit No. 21 and Suit No. 22) the Plaintiff alleged that there was late delivery of vacant possession of both units of 3287 days i.e. from 21.2.2014 to 21.2.2023. However, Plaintiff did not take into account the exemption period of 167 days (i.e. from 18.3.2020 until 31.8.2020) granted by the aid Minister for the computation of the LAD (Bundle A1 page 111-112). From April 2020 to June 2020, the Defendant applied to the Minister of Housing and Local Government for an extension of time to deliver vacant possession of the said properties to all purchasers including the Plaintiff due to Covid-19 pandemic and various movement control orders. (Bundle A1 page 101 - 105, 97 -100). On 1.12.2021, the Minister exempted the period from 18.3/2020 until 31.8.2020 (167 days) from the calculation of the time period for the delivery of vacant possession and common facilities based on the said SPA. (Bundle A1 page 111-112). This exemption pursuant to Section 35(1) of temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID -19) Act 2020. [21] Therefore, any calculation of the LAD should have taken into account the exemption period from 18.3.2020 to 31.8.2020. In this case the very purpose the 2 units given to FPS and/or Plaintiff is to contra the consultancy payment that were owed by the Defendant to the Plaintiff. It is evidenced by the Deed of Settlement signed between the Defendant and FPS. It is not a normal sale and purchase. The price of the 2 units are stated in Schedule 1 of the Deed of Settlement as follows: i. D’ Rapport Unit E-21-02 at a price of RM 939,000.00 ii. D’ Rapport Unit E-22-02 at a price of RM 943,000.00 Instead, the Plaintiff calculated the LAD by using the purchase price under the SPA. For the Unit 22-02 the purchase price - RM 1,060,200.00 (Bundle A1 page 36) and for the Unit 21-02 the purchase price - RM 1,056,700.00 (Bundle A1 page 72). Total LAD claimed by the Plaintiff using the purchase price as per the SPAs is RM 2,287,653.39 and this clearly exceeds the settlement sum of RM 2,182,000.00 under the Deed of Settlement. [22] This court agrees with the Defendant’s solicitor’s submission when they submit that the claim for LAD is an unjust enrichment for the Plaintiff. The Plaintiff did not pay for the purchase price for the 2 properties because the properties are being contra for consultation amount owed by Defendant to FPS; therefore, there is no losses suffered by the Plaintiff for late delivery of the 2 condominiums. Therefore, this court dismissed the claim for LAD by the Plaintiff. V. Whether the Plaintiff’s claim is bared by laches and/or inordinate and inexcusable delay? [23] Defendant submits that the SPAs was signed by parties on 22.2.2011 and the Deed of Settlement was signed on 29.8.2013. At all material times, FPS and/or Plaintiff had always represented to the Defendant that FPS or its nominees (Plaintiff) will not be claiming any LAD from the Defendant. Defendant then delivers the 2 condominiums units to Plaintiff only in 2023. FPS and/or Plaintiff never complaint of any delay in handing over vacant possession even though the 36 months from date of signing the SPAs (22.2.2011) has passed. The 2 units condominium should have been handed vacant possession to FPS and/or Plaintiff on 21.2.2014. Plaintiff did not send any notice of intention to the Defendant to claim LAD. They only demand for LAD claim on 24.2.2023 (Bundle A1 page 116 -119) more than 12 years after the SPAs and the Deed of Settlement signed. [24] If the Plaintiff truly believe that they are entitled to the LAD, why wait 12 years to claim what is rightfully theirs if it is so. It is clear that the Plaintiff had slept on their rights and acquiesced for more than 12 years. This is because the Plaintiff knew that all along because of the Deed of Settlement that was signed after the SPAs, they are not entitled to any LAD. The Plaintiff and/ or FPS is barred by laches and/ or inordinate delay from pursuing this claim. C. CONCLUSION [25] Based on the above reasons, on the balance of probabilities the Plaintiff had failed to prove that they are entitled to the claim for the LAD of the 2 units condominium. Other than the issues that was discussed above, the most important thing is the SPAs had been superseded by the Deed of Settlement and in the terms and conditions of the Deed of Settlement, there is no mention of any claim for LAD. Therefore, for Suit 21 and Suit 22, both the Plaintiff’s claim is hereby dismissed with cost. The Plaintiff is to pay the Defendant in each suit RM 25,000.00 as cost. Dated 24 January 2025 -sgd- (NORLIZA BINTI OTHMAN) JUDGE HIGH COURT OF KLANG SOLICITORS FOR THE PLAINTIFF : Messrs Yy Tan & Co. A-12-13 Tower A, Tropicana Avenue, Persiaran Tropicana Golf and Country Resort 47410 Petaling Jaya, Selangor Darul Ehsan SOLICITORS FOR THE DEFENDANT : Messrs. HL Wong L-5-9, No. 2, Jalan Solaris, Solaris Mont’ Kiara, 50480 Kuala Lumpur